43 F. 428 -

43 F1d 428

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Case Text

_ Thatihe. plaintiffs have the legal title upon which to found an action Q(ejectmeptcannot be doubte'd. The trust in Joseph Pen.nockunder of March 27 j 1851, was a dry trust. The statute, therefore, the use, and the legal. title to the undivided five twenty-second parts of the land passed to Archibald Paull. Moore v. Bhultz,13 Pa. Stewart, 53 Pa.St. 460; Webster .v. Cooper, 14 How. St.: 98; Eckels 488. , An,d now, August 5, 1890, the court finds in favor of the plaintiffs, tllatthey do recover the undivided five twenty-second parts of the piElce, of.land described in the plaintiffs' p1';ecipe and the writ, and six dents damages, and costs.. ' , " Let judgment be entered upon the finding of the couttin favor of the pla.i l1 tifts at ,the end of four (,lays sec. reg., unless, in the mean ,time,a IP,ptioJi for aJ:lew trial should be made·
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WA.BNOdK .V.MITCHELL·

i:' : ' ,

i: ;

,,(C(rcuft Court.

lV. D.

Augul\t 26, 1800.)

."

Cahmtit LIlUl:L-ACTfON

".: 'Dhe Tennessee Code (Mill & V. § 6552) has not changed the common law that t/)e sending of a sealed letter which is libelous to the plll.illtiff, without allY "other kat on the part of the defendant towards making its contents known to a third _ person; is punishable criminally, it is Dot a publioation liuftloien1O 100 suppor1O a civil ,aqtioll, for d,efamation. . ' ,

DAMAGES-SEKDING LETTER.:.

";At'

; ·Ster;ling

,

'.. Taylor «'Carroll,

' On demurrer, to the

for plaintiff. for defeQdant.

J. The two counts of. thisdeclaratiol1' to which the debelm limited by the submission in argument, aver no other or specially, of the alleged libel, than the r,eceipt by 'theplaintiffQf 'the private letters in which the, cOI).t8;ined. , It is by the plaintiff's counsel, that this is not lJosiifficjeD.t publication, unless the rule of the commoQ law, has been by .the statute. .will. aid us in determining the disputed; scope ,of the' statute to consider somewhat the rule of the common law, 6J:l the, ,irhe counsel for the defendant has statlld correctly, as find, the ,rea.son why mere delivery of a private letter, to the r)lliiutip' is, no.t;in.a civil,lWtion, a publication of the, libel, ,and yet, in a,' <;rimiual iJidictment, to a publication. In the civil action, the iri"thei>ry allows for wounded feelings alone, but oply that injury is with an impairmeQt of one's repothers; as, in other cases,- of tort, where there tnust be some _ <;>r which may be by the. mento. talsuffl!rmg attendmg the lDJury. But when,the pul>li.c
murrer

when

WABNoCE'. MITCHELL··

429

redress its· own wrong in· the premises by the criminal proceeding, it punisbes not so much for the defamation. of the prosecutor as for the somewhat distinct offense of inciting, by the defamation, to a breach of the peace. Perhaps, in strict thought, it may be that it is a misnomer to call the criminal proceeding a prosecution for libel at all, for all authorities are agreed that the indictment or information must allege an intention to break the peace by incitement thereto. Yet it will be found perhaps that, after all, the distinction comes of an extreme solicitude to punish the culprit for mere private defamation,-a solicitude which is not indulgence in the liberso intense when the public itself becomes, by ties of free speech, a sharer in the offense ofopen defamation, and through: its public press, and other organs of public opinion, delights to degrade a man by libel and slander because of his social,religious, or political sins, in their sight, or for the mere barbaric enjoyment of the sensation Of seeing a good reputation destroyed, the destroyers hypocritioally prosympathy with the victim meanwhile.· Most of the on the.subject of libel hlll:l:been, therefore, in aid of the public freedom' in this behalf; but when it does touch upon the seemingly less venial offense of mere private defamation, it is in the other direction of more severe laws for its suppression. It might be well enough urged, there(ore, that the legislature intended by any given statute to enlarge the c.ivilremedy by placing it upon an equality with the criminal proceeding in the matter of publication, and that which it takes to constitute it; for all the cases show that the courts are very astute to lay hold of any circumstance appearing indhe case to sustainpublicatioll in aid oftne civil action in regard to mere private transactions, and in the criminal proceeding do not require. it at all. Nevertheless, quite reluctantly, I conclude that the Tennessee legislature had not any intention to enlarge the civil remedy in the statute. we have before us. , In the leading case of Sir Baptist Hicks, Hob. 215, Poph. 139, as stated by the last-cited reporter, the reasons for the rule of the criminal law are somewhat diversely given by the judges; none of them saying, however, that it was because of s provocation to s breach ofthe peace, as reported by Hobart, and generally accepted by subsequent cases. One. of them said that such a letter as was written in that case concerned public matter, and was an offense against piety, charity, and justice, because Sir Baptist's benefactions, which were derided, were given to a church, to a hospital, and to a public building,snd the giving of such gifts should I).ot be discouraged, even by private derision. Another said that if th& defamatOl'J.letter had related to only private concerns, and did 110t thus l:!-ffect the public interest, it could not have been punished. Lord COKE said only that he had been instruct.ed as attorney to fileaninformation in such a case, which, however, was not filed, for reasons,stated by him, and that it was resolved in Edwarch v. Wooton, 12 Coke, 35; to .But Lord Chancellor BACON said "thai the reason whY Buch a private lettershall be punished is because it in a manner enforciththe party to whom the letter is directed to·publishit to his friends to have for fear thllt party· would . p,l1blish'it,.ap, that

'ofth6cbun; Certl\inly the court did notde'cide tbat propositioD., although 'Lord}h;NSFlELD'does say tbat "the generalruleaare laid down as'Mr, Wood has stati:ld;" for the letter in that. case was not addressed to the plaintjfhtall, but to a third person, one Collier.' AI8d,Bacou's Abtidgment,ltit. "Libel," B,states that "it seems to bea 'matter of doubt whether the sending an abusive letter,filled with provoking language, toanotht'lr,will bean action·as ;fora libel, because heteis tion." '.But the cases indicate that perhaps' ,this dOUbt, and the statemEmt, Wood above referred to, are confused with that other doubt which: was mooted in the famoua case of King v. Burdett, 3 Barn. &Ald, '71 '1', 4'Batin.4t:Ald. 95j'314,'and notdecidediwhetber, namely, the mere writing, of libel, without-more, is not in the oriminal law an dictableoffeneel' . 2' Starkie; I ' ,It',will be.found,l3Ofllt as I'Rm adViseel, that the law of libel, both d vilantl criminal, ,Mands in' Tennessee substantially as at common ,law; 1l1' 1805;Jfollowing the lead of some otlierstatea; we passed an act placingtbe: criminal prosl3Cution upon an equality· with the'Clvi4 action in: the matter of perrpitting the truth of the defamatory ;words t6' he shdwn in defensEiof the indiciment, but with that'exeeptiont our legislation ,has baen l."emiarka<blyfree from any 'interference with the OOrn1110ritlaw oflih¢l or islander. Act 1805, c. 6, Caruth. &; N.St. p. 439. to make the Code of 1858,. the commissioners oharged with· that duty added to the legisla:tion four sections, or, more accurately, three secti'()i)s, the other being the mare repetition of a constitutional· requirement that the jurY'llhouM bejudgesof,bothtbe law and the facts,in allprosecutiona for libel. Const. art. l,'§ 19; Thomp. & S.Code Tenn'.§ 4764: The first,of these sections defines. "a libel "in language which might be applicable to either the criminal or the civil offens6, and the next 'extends thedefinition to include defamation of the memory of tbedead; Id. §§ 4760,4761. Then comes the section which ,is brought1nto the dispute in'this case(defining"publicationi" and tllenext section ill the act of 1805, before referred to, relating to the truth of the matter charged in theiudictmentas a defense. Id. §§ 4762, 476"3jMill.& V; Oooe, §§ 5550-5554. The section here in dispute concerning the "publioo.ticin" of the libel, is as follows: . Noprintfng. writing. or other thing is a libel without publication; but the deliverY,'l!eHing, reading. orotherwise communicating aUbel, or causing,the same to be delivered, sold. read, or otherwise communicated. to one or mora Persons; or to the party libeled, is a publication thereof." ,Mill. & V. Code, § &552. Were it not for the circumstances to be presently mentioned, ;r should be inclined to construe thisgenerallangnage (also that of the two preto both the civil andtbe criminal remedy for, a fter' .the reason' for denying the civilrerriedy, when thedefarna.tory words have' ,been only;tothe plaintiff, ,isltechnical,and highly artificial, as plausible as it appl*lrstb he. ,No.injnry in fact Udoovictim's,reputation il;$ but:only in theorY-icsinlilethe

a

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theU1irq person hearing the words does not believe them to be true, or them to be falsej it being sufficient if from their nature they are 9t\olculated to do him the injury, (H'IJ1Jbard v. Ruaedge, 52 Miss. 581j Markhamv. R'll88ell, 12 Allen, 573j Marb.le v. Chapin, 132 Mass. 225j) just as in other torts the slightest physical pain. or none at all, if the blow be giv!ilPiO, fact, or other trespass be actually committed, will support the Btctjon·for damages. .Wherefore it would seem not unreasonable for the legislature to place the civil remedy on an equality in this regard with the criminal offense, and, make the mere sending of the letter to the plaintiff.alone a. publication,' thereby making unnecessary all that judicial astuteness we find inthtlCRses which lay hold of almost any,circumstance beyond the plaintiff toconstittlte the required "publication." But, prior to these superadded sections of the Code, the decisions in Tennessee had held plOS!'l'ly to the common lawjboth as to civil remedy and as to the prosecutionj thei'e being· substantially no other law on the sub.. , In Swindle v. State, 2 yerg. 581, placing the letter sealed under the beClof a: third ,person, who was. likely to open it. although addressed only to;the, pl/lJ"tiff, wall held a publication within ,the purview of the criIn;. pf libel. It was a publication in fact. The court quotes Gilbert apprQt\lingly"aQQ ,the,cQiSe is instructive as to our local law on this subject. In, :ffodges;v.8t4te,.1':i HUlPph. 112, the court seems, obiter, to decide that the byth e of the letter through, the mail was not a publication' and, as that was ·acriminal case, it might inferentially appear that the court deci4ed t44t, ,even 1n a criminal.case, the delivery to the i;l nota publicatiollj.but clearly the court did not so decide, qeQll,use' the case failed, onlybecausetbeindictment was fatally in not ave).'ring ran :intention to provoke a. breach of the pealle. lftbathadbeena.verred'i the court would have sustained the conviction. And the law in Tennesaee:femains in harmony with the general law and theleadingcasEl in this:country of State V. Avery, 7 Conn. 266, and .the Jt\tellt case of 4.dPrns,supra, in England, and the others already . ., '. mentioneel:. ,'Such being the state of our decisions and the general law, it seems di,fflcultto determine why the makers of our Code felt it necessary t() insert these merely declaratory sections in the criminal part of their Code, where they are, cplIlparativ,e1y useless, and while if applied to the :civ.illLction. they would.· have meant something of importance, unless it '1llay,be that'tbeywished to settle the other doubt before mentioned, whether::or!l1f>t the bare writing of libelous matter, without more, is punishable criminally. Possibly this section was intended to settIe that it I3houldn.ot be., however the point may be ruled at common law or elsewhere., However this may be, these sections ate not found,as they ·should: be if applicable to the whole body of our law, in that chapter of the Code, containing general definitions,(Thomp., & S. ,Code, §§ 40-59j ,Mill.,& V.,Code f .§§ 41-:-57,).but only in the chapter on "Crimes," and in ,the .:regular, catalogue of :.crin16s under the title of "Libelj" and, general ,as:the is, ,since the legislature was not treating of the civil remeqy.in, tUid,;uo; express: words are, used, nor .lair inference

UNITED STATES". CURTAIN.

433

may be drawn, to show that they had in mind that branch of the law of libel, this section of the Code should be confined to the criminal prosecution, and we cannot extend it, as we are asked to do in this case, to the civil remedY. . Demurrer sustained.

UNITED STATES II. CURTAIN.

(Dtstrlct Oourt, W. D. South OaroZ(na. August 12, 1890.)FALSE

In order toqonvict a defendant indicted under Act Cong. April 18, 1884, for obtaining money or otber valuable thing by falsely assuming to be an officer or agent of the United States, it is necessary for the iury to find that he assumed to be the officer mentiQned in the indictment; that suoh assumption Wll.S false; that belllade wi,thintent to defrau(1; .and that hit lllID'iltd out such intent.

CONSTITUTES.

. .

.'

At Law. A. Lathrop, U. S. Dist. Atty., for plaintiff. T. H. Cooke, for defendQnt. SIMONTON, J., (charging jury.) The defendant"stands indicted under thtnwtof' tiongress of April 18, 1884.' The testimony for the govern:Inent is to the effect that he, alleging that he was a post-office inspector; visited one Crane, a postmaster, and charged him with illegal sale of stamps; that Crane admitted the charge, whereupon defendant received from him $150, giving him a receipt in full for stamps illegally used; sighirig;it post-office inspector. The defendant, the only witness on his OWD behalf, admits the main facts. He insists, however, that tbe'sole purpose of his assumption of the charactet of post-office inspector was to obtain information, for which some newspaper would pay him. The act of congress, under which he is indicted, creates two offenses. The one is where, with intent to defraud the United States, or any perSOD, anyone falsely pretends to be ,an officer or employe, acting under the l].uthority ofthe United States, or any department or any officer thereof, and takes upon himselfto act as such. The other is where one, falsely a.ssuming such pretended character, shall demand or obtain from any person, or from the United Statt's, or any department or officer thereof, anytnoney, paper, document, or other valuable thing. The ant is indicted under this last su bdivision of the act. In order to convict him, you must answer these questions in the affirmati've: . (1) Did this defendant assume or pretend to be a post-office inspector, acting under the authority of the department? (2) Was such assumption or pretense false? (3) Did he make this false pretense or a8sumption with intent to defraud Crane, the postmaster? (4) Did he carry out tent, he in this,his assumed or pretended, chara<;ter, or of his' false assumption or pretense, defraud, or attempt to defraud, CraDe?'. . ' v.43F.no.6-28